Paint Makers Seek OSHA Rule Immunity

Coatings manufacturers are seeking exemption from a proposed federal rule that would make injury and illness records publicly accessible online.

According to the American Coatings Association, the paint, coatings and adhesives manufacturing industry scores low enough on established safety metrics data and should be considered for exemption from the Occupational Safety and Health Administration's proposed rule to Improve Tracking of Workplace Injuries and Illnesses.

The American Coatings Association says OSHA's proposed rule to Improve Tracking of Workplace Injuries and Illnesses needs amendments or it "will do little to accomplish ... improving workplace safety and health."

However, in comments submitted March 10 by ACA, the association says the proposed rule's requirements "as written ... will do little to accomplish the Agency's stated purpose of improving workplace safety and health, and they raise a number of additional concerns."

The rule would change the way employers submit their OSHA 300 injury and illness records but would not add new recordkeeping requirements, the agency said.

Under the proposal, about 38,000 companies with 250 or more employees would have to submit their electronic records quarterly (the companies are already required to keep those records). About 440,000 companies with 20 to 250 employees in industries with high injury and illness rates would have to submit a summary report electronically once a year. Companies with fewer than 20 employees are not affected.

About 260,000 establishments would be newly required to provide the summary data, OSHA says.

OSHA extended the comment period from Feb. 6 to March 8, after the National Association of Home Builders requested an extension, citing the proposal's overlap with OSHA's proposed rule on crystalline silica. Since March 8 fell on a Saturday, OSHA accepted comments submitted the following Monday, March 10.

OSHA has received more than 1,400 public comments and says it will carefully review all of them before publishing a final rule.

Change Broad Categories

ACA, which represents more than 90 percent of the total domestic production of paints and coatings in the United States, has asked OSHA to narrow the scope of the proposed rule to exempt the paint, coatings and adhesives manufacturing industry.

Coating makers say OSHA should determine which industries are covered under the proposed rule based on specific industry group DART (Days Away From Work, Job Restriction, or Job Transfer) scores rather than broad, general industry categories such as manufacturing.

The proposed DART threshold is 2.0, and the paint, coatings and adhesives manufacturing industry achieved a 2009 DART rate of 1.9, which would make it exempt under ACA's proposed alternative.

Koralie Hill / OSHA

OSHA is proposing to make injury and illness reports publicly available online, a move ACA says makes the proposal a "naming and shaming" rule.

OSHA should instead focus its resources on only the highest-hazard industry groups, ACA says.

ACA is urging OSHA to "seriously reevaluate and provide evidence, if any, that this proposed rule will result in improving workplace safety."

'Naming and Shaming'

ACA says that it also has concerns about the purpose or unintended consequences of the proposed rule, and that employers may face unfair public scrutiny since records will be posted without context and without information about the employers' safe workplace programs and efforts.

"This reason alone is why many industries have dubbed this rule the 'naming and shaming' proposed rule," ACA says.

OSHA says it plans to develop a secure website where it will post these records, after removing personal and identifying information. This move, encouraged by President Obama's Open Government Initiative, will allow the public to evaluate and compare employers and give employers incentive to improve workplace safety and accuracy in reporting, according to OSHA.

However, ACA says OSHA has not provided data or substantive evidence to suggest that the electronic submissions or publishing the data on a public website will accomplish the goal. Additionally, "releasing these records on a public website, where OSHA has not proposed a method to screen sensitive, identifying employee information, could create serious privacy concerns," ACA contends.

OSHA has provided a mockup example of its electronic illness and injury reporting system.

In fact, ACA says the rule may have the opposite effect, with employers underreporting illnesses and injuries.

Energy, Cost Concerns

"ACA stresses that this Proposed Rule will consume large amounts of Agency and employer resources; will force employers to disclose sensitive information to the public that can easily be manipulated, mischaracterized, and misused for reasons wholly unrelated to safety; and will subject employers to illegitimate attacks and employees to violations of their privacy," the association says.

ACA is also concerned that OSHA has underestimated the cost, which the agency estimated to total $10.5 million per year for the private industry, with costs of $183 per year for affected establishments with 250 or more employees and $9 per year for those with 20 or more employees in designated industries.